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Challenge to 'Diploma Privilege' Reinstated by U.S. Court of Appeals

From the State Bar of Wisconsin News:

A challenge to Wisconsin's diploma privilege has been remanded to federal district court following the U.S. Seventh Circuit Court of Appeals' decision in Wiesmueller v. Kosobucki, 08-2527...

In its opinion, the court of appeals said that the district court's dismissal of the action left it in "an evidentiary vacuum." The plaintiffs had been appealing that order issued.

The court indicated that the plaintiffs should build the evidentiary record before the diploma privilege's effect on interstate commerce can be assessed.

"[S]uppose - a supposition not only consistent with but actually suggested by the scanty record that the plaintiffs were not allowed to amplify - that Wisconsin law is no greater part of the curriculum of the Marquette and Madison law schools than it is of the law schools of Harvard, Yale, Columbus, Virginia, the University of Texas, Notre Dame, the University of Chicago, the University of Oklahoma, and the University of Northern Illinois (which happens to be within a stone's throw of Wisconsin, as are the three law schools in Minneapolis)," the court wrote.

"That would suggest that the diploma privilege creates an arbitrary distinction between graduates of the two Wisconsin law schools and graduates of other accredited law schools. And it is a distinction that burdens interstate commerce," the court concluded....

If the diploma privilege is invalidated, the court noted that "unequal treatment can be eliminated without conferring any benefit on the plaintiff that challenged it." Accordingly, the court said Wisconsin may only require all applicants take the bar exam....

However, the court offered that Wisconsin might also choose "to require all applicants (or perhaps all applicants who had not practiced for a period of time in another state) to take a continuous legal education course in Wisconsin law in lieu of a bar exam."

Update: See the response from Marquette Law School Dean Joseph D. Kearney. Here's an excerpt:

While Marquette is not a party to this case (the defendants are the members of the Wisconsin Supreme Court and its Board of Bar Examiners), I expect that on remand (and any subsequent appeal) the diploma privilege will pass constitutional muster. This is the beginning of my seventh year as dean and thirteenth as a member of the faculty at Marquette; throughout this time Marquette Law School has sought to ensure--because of the diploma privilege--that our students are especially introduced to the law and legal profession of Wisconsin. Certainly I expect that it is not the case (to quote a "supposition" posed by the Seventh Circuit) "that Wisconsin law is no greater part of the curriculum of the Marquette and Madison law schools than it is of the law schools of Harvard, Yale, Columbia, Virginia, the University of Texas, Notre Dame, the University of Chicago, the University of Oklahoma, and the University of Northern Illinois." Id. at 9. Indeed, I know it not to be the case at Marquette, and I expect that a similar thing is true at the University of Wisconsin. To be sure, it will take a while to demonstrate all this through the litigation system, but Marquette will provide the Attorney General's office any support that it requires in marshaling evidence.